GAO hits EPA for ‘covert propaganda’ to promote ‘waters of the United States’ (WOTUS) rule

Yesterday the Government Accountability Office issued a report concluding that the Environmental Protection Agency (EPA) violated federal law in its use of social media to promote its controversial “WOTUS rule,” redefining the scope of the “waters of the United States” subject to federal regulation under the Clean Water Act. Specifically, the GAO concluded that the EPA violated express limits on the use of appropriations for indirect or grassroots lobbying, and that in doing so, the agency violated the Antideficiency Act.

According to the GAO, the EPA used various social media platforms, including Thunderclap, to develop support for its proposal to expand and clarify the scope of its own regulatory jurisdiction and combat opposition to the rule. The EPA also used social media communications to promote materials supporting the WOTUS rule by environmentalist advocacy groups, including materials that were clearly designed to oppose legislative efforts to limit or block the rule. The GAO labeled these efforts “covert propaganda.” The New York Times had previously documented some of the EPA’s actions.

According to Politico, the EPA disputes the GAO’s findings, arguing that it uses social media to help inform the public about EPA initiatives, and not to engage in prohibited lobbying activity. As I noted here, the WOTUS rule has sparked significant opposition and is currently subject to legal challenge in court. There are also efforts in Congress to repeal it.

As the New York Timesreports, the controversy over the EPA’s use of social media raises broader questions about how agencies should (or should not) communicate with the public. On the one hand, social media is an important way to disseminate information. On the other hand, some legislators are concerned that government agencies use taxpayer dollars to advocate for expanding their own regulatory authority (what the GAO termed self-aggrandizement). From the Times:

The E.P.A. rolled out a social media campaign on Twitter, Facebook, YouTube, and even on more innovative tools such as Thunderclap, to counter opposition to its water rule, which effectively restricts how land near certain surface waters can be used. The agency said the rule would prevent pollution in drinking water sources. Farmers, business groups and Republicans have called the rule a flagrant case of government overreach.

The publicity campaign was part of a broader effort by the Obama administration to counter critics of its policies through social media tools, communicating directly with Americans and bypassing traditional news organizations.

At the White House, top aides to President Obama have formed the Office of Digital Strategy, which promotes his agenda on Twitter, Facebook, Medium and other social sites. Shailagh Murray, a senior adviser to the president, is charged in part with expanding Mr. Obama’s presence in that online world. . . .

Federal agencies are allowed to promote their own policies, but are not allowed to engage in propaganda, defined as covert activity intended to influence the American public. They also are not allowed to use federal resources to conduct so-called grass-roots lobbying — urging the American public to contact Congress to take a certain kind of action on pending legislation.

This is not the first time an agency has been found to cross this line, and I doubt it will be the last.

Jonathan H. AdlerJonathan H. Adler teaches courses in constitutional, administrative, and environmental law at the Case Western University School of Law, where he is the inaugural Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation. Follow

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